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The People vs. Leo Frank

The Jewish Law Student Association and the Innocence Project Student Association co-sponsored the presentation, "From Lynching to Legal Injections: Presumably Innocent Men Killed by State Executions.” "The People v. Leo Frank,” a documentary about a Jewish man wrongfully lynched in 1915 was followed by a panel discussion about Leo Frank’s story and the recent execution of Troy Davis. The panel was moderated by Alumni Director Joe Libertelli. Featured speakers on the panel included: Marshall Dayan '86, Assistant Federal Public Defender from Pittsburgh, PA, Gerri L. Williams, UDC Research Associate, CAUSES, John Terzano, Professor of Law at the UDC David A. Clarke School of Law, and Joseph Tulman, Professor of Law and Director of the Took Crowell Institute for At-Risk Youth at the UDC David A. Clarke School of Law.

The documentary begins in Atlanta, GA on April 27, 1913, when Newt Lee, a black worker on his morning rounds at the National Pencil Company, discovers the lifeless body of 13-year-old Mary Phagan in the factory’s cellar. When Newt is unable to reach Mr. Frank, the factory superintendent, he calls the police. Detectives John Black and Butch Rogers arrive at the factory and are led to Ms. Phagan’s strangled body. Mary Phagan's body was found dumped in the rear of the basement in front of a furnace. Her dress was hiked up around her waist and a strip from her coat was torn off and wrapped around her neck. Her face was blackened and scratched. Her head was bruised and battered. Initially there was an appearance of rape. Two poorly handwritten notes were also found by Phagan's head and would come to be known as the "murder notes.” In one note, it makes reference to a "night witch" which was interpreted to mean "night watch[man]" implicating Mr. Lee as the killer. Officers called Mr. Frank at his home at four o’clock in the morning and there was no answer. They proceeded to his address and were finally able to reach him.

Returning to the factory, Mr. Frank is told of Mary Phagan’s murder and police make note of his nervous demeanor and mark his overly detailed answers to minor points as suspect. Mr. Frank recalls that Ms. Phagan had worked in the metal room where she ran a knurling machine that inserted rubber erasers into pencils’ metal bands, but that she had been laid off almost a week prior to her death due to a shortage of brass sheet metal. He tells police that he saw her the day before she was murdered because she had come to the factory to claim her pay. This makes Leo Frank the last known person to see Mary Phagan alive. Mr. Frank returns with police to the scene of the crime via a service elevator. As they descend, the officers ask Mr. Frank why Mr. Lee hadn’t used this elevator previously when they first arrived. He responds that it was out of service earlier because someone had used the elevator shaft as a bathroom and the area needed to be cleaned. It is unclear from records, if Leo Frank actually saw the body of Mary Phagan during this time. They later return to Mr. Frank’s office to look over records to account for Mr. Lee’s time. After review, Leo Frank tells officers that Mr. Lee’s time card—which was to be punched every half hour - is complete. It is clear to police, that Mr. Lee could not have committed the murder and still be able to complete his watch on time. Having been ruled out as a suspect, the police turn their attentions to Leo Frank.

The Atlanta Constitution broke the story of Mary Phagan’s murder and was soon in a frenzied competition with the Georgian for readers. The Georgian was a local paper recently bought by the William Randolph Hearst syndicate and revamped using his standard formula of sensationalism. The Georgianpublished a doctored morgue photo of Phagan, in which her head was shown spliced onto the body of another girl. Some evidence went missing when it was 'borrowed' from the police by reporters. The two papers offered a total of $1,800 in reward money for information leading to the apprehension of the murderer. On Monday, April 28, Frank told detectives that Lee had not punched the card at three or four intervals as he had previously confirmed; the detectives read this new information as Mr. Frank’s way of deflecting suspicions from himself onto Mr. Lee in order to incriminate him. The police investigated a variety of suspects, and arrested both Lee and a young friend of Phagan's for the crime. Increasingly they became persuaded that they were not the perpetrators. Later, Phagan's friend, 13-year-old pencil factory worker George Epps, came forward to say that Frank had flirted with Phagan and had frightened her. The Atlanta Constitution ramped up their heated criticism of the police for their lack of progress and under increasing pressure the police arrested Leo Frank for the murder of Mary Phagan.

While Mr. Frank was being held in the Fulton County jail which was locally known as "The Tower,” a black man, Jim Conley, was arrested on May 1, 1913 after he was caught by the plant’s day watchman, E.F. Holloway, washing "red stains” from his clothes. Conley tried to hide the shirt but then said the stains were caused by rust from the overhead pipe. Detectives examined it for blood but found none and returned it. Mr. Conley was in police custody when he gave his first formal statement two weeks later. He stated that, on the day of the murder, he had been out drinking and gambling and had returned home. Mr. Conley’s alibi was questioned, when a witness told detectives that "a black negro... dressed in dark blue clothing and hat" had been seen in the lobby of the factory on the day of the murder. Mr. Conley was shown the "murder notes” and was asked if knew anything about them. He denied knowing how to read or write, a fact that was contradicted by statements given by Leo Frank, who said that Conley knew how to do both because he had previously filled out promissory notes.

Sticking to his claim that he could not read or write, Mr. Conley, was threatened by officers with charges of perjury, and eventually he told police that he had lied. Mr. Conley was made to take dictation of the notes in his own writing and though he copied the exact spelling errors found in the notes, Mr. Conley continued to deny having any involvement in the murder of Mary Phagan. A week later, on May 24, Mr. Conley called for a detective and admitted he had written the notes. In a sworn statement he said Leo Frank had called him to his office the day before the murder and had him take down dictation of the contents of the "murder notes.” Mr. Conley told detectives, that Mr. Frank had told him that he wanted to be with Mary Phagan but he was afraid that he had hurt her. Mr. Conley would again admit that he had lied about his Friday meeting with Mr. Frank in a second affidavit, saying that he had met Frank on the street on Saturday, and was told by Mr. Frank to follow him to the factory. Mr. Frank told him to hide in a wardrobe to avoid being seen by two women who were visiting Mr. Frank in his office. Mr. Conley said Mr. Frank dictated the murder notes for him to write, gave him cigarettes, and told him to leave the factory. Afterward, Mr. Conley said he went out drinking and saw a movie. He said he did not learn of the murder until he went to work on Monday. The police were satisfied with the new story, and both The Atlanta Journal and the Georgian gave the story front-page coverage.

On May 29, 1913, Mr. Conley was again interviewed for several hours.In his third affidavit, Mr. Conley said that Mr. Frank told him that "he had picked up a girl back there and let her fall and that her head hit against something." Conley said that he and Leo Frank took the body to the basement via the elevator, and then returned to Frank's office where the murder notes were dictated. Conley then hid in the wardrobe after the two had returned to the office. He said Leo Frank gave him two hundred dollars but took it back saying, "Let me have that and I will make it all right with you Monday if I live and nothing happens." The Georgian hired William Manning Smith to represent Mr. Conley. Smith was known for specializing in representing black clients and believed Mr. Conley to be innocent and felt that Mr. Frank would use his access to unlimited funds to blame Mr. Conley. Mr. Smith agreed to waive his usual attorney’s fees and began working with Mr. Conley by buying him new clothes and turning him into a polished witness.

Leo Frank’s trial began in July of 1913 to a packed courtroom. Mr. Frank was represented by eight lawyers led by Luther Z. Rosser. Mr. Frank’s defense put forth the theory that Mr. Conley was the murderer, and that Newt Lee helped Conley write the notes found on Mary Phagan. The prosecution, led by the Solicitor General Hugh M. Dorsey, who at the time had suffered a number of embarrassing losses, made the argument that Leo Frank was of low moral character and had a "penchant for taking sexual advantage of the young girls in the office.” Mr. Dorsey argued that in an attempt to protect himself, Mr. Frank dictated the "murder notes” to Mr. Conley in an effort to pin the crime on Newt Lee. Newt Lee becomes a star witness for the prosecution. Detective’s John Black and Butch Rogers testify to what the prosecution was calling Leo Frank’s "odd behavior,” saying that he was "shivering” and his "eyes were funny and large” and he kept "rubbing his hands together.”

During his testimony Mr. Conley says that Leo Frank had told him that Mary Phagan had "refused me and I struck her and I must have struck her too hard.” Conley reiterated his testimony from his final affidavit. He added to it by describing Frank as regularly having sex with women in his upstairs office on Saturdays while Conley kept a lookout on the first floor lobby. When Mr. Rosser, the lead attorney for the defense cross examined Mr. Conley and repeatedly exposed the inconsistencies of his testimony, the only response Mr. Conley would give was, "I disremember.” Mr. Conley’s testimony was met with loud applause from the gallery. Many white observers at the time, thought Conley brave for speaking out against his white employer because they did not believe that a black man could have been intelligent enough to make up such a complicated story. The Georgian wrote, "Many people are arguing to themselves that the negro, no matter how hard he tried or how generously he was coached, still never could have framed up a story like the one he told unless there was some foundation in fact."

On August 18, 1913, Leo Frank testified in his own defense. Most of his four-hour speech consisted of a detailed recounting of the accounting work he had done the day of the murder with very little if nothing said about Mary Phagan. He ended with a description of how he viewed the crime, along with an explanation of his nervousness: "Gentlemen, I was nervous. I was completely unstrung. Imagine yourself called from sound slumber in the early hours of the morning ... To see that little girl on the dawn of womanhood so cruelly murdered - it was a scene that would have melted stone." He continued by calling Mr. Conley a liar and emphatically stated that he had told the truth. Mr. Rosser in his closing remarks called Mr. Conley "nothing more than a trained parrot” and that his constant replies of "I disremember” was a "badge and sign of perjury.” Mr. Dorsey countered with an argument pondering whether authorities would pass over a black man in place of a white one if he was guilty? He continued, saying that the mind that had produced the "murder notes” was the same mind of the murderer; that the grammar and syntax used in the notes point to Mr. Frank and not Mr. Conley. With the sensational coverage, public sentiment in Atlanta turned strongly against Frank. The defense requested a mistrial because it felt the jurors had been intimidated, but the motion was denied.In case of an acquittal, Judge Lyndon Rooney feared for the safety of Mr. Frank and his lawyers, so he brokered a deal in which they would not be present when the verdict was read. On August 25, Leo Frank was convicted of murder. While Mr. Dorsey was lifted up on the shoulders of the jubilant crowd, Leo Frank was a half mile away in the Tower when he learned of the verdict.

After having his case be denied review thirteen times and his final appeal failing in the Georgia Supreme Court, Leo Frank’s lawyers sought a writ of habeas corpus at the U.S. Supreme Court. On April 19, 1915 in a 7-2 vote, the petition was denied. In his remarks, U.S Supreme Court Justice Oliver Wendell Holmes wrote that he doubted if Mr. Frank had received due process of law due to the fact that he had to be removed from the court room because of the seemingly hostile and dangerous crowd and the fear that they might react violently if a guilty verdict was not rendered. Leo Frank was sentenced to be executed two months later. On May 31, 1915, Leo Frank’s lawyers appealed to the Georgia State Prison Commission that his sentence be commuted to life imprisonment though Mr. Frank had argued for a pardon. Outgoing Georgian Governor John M. Slaton reviewed not only a linguistics report that one of Mr. Conley’s own lawyers, Mr. William Smith, had compiled showing Mr. Franks innocence. He also visited the pencil factory and examined new evidence. On June 21, less than a week before Leo Frank was to hang, Governor Slaton commuted Frank’s sentence to life in prison. The Atlanta public was enraged and images of the Governor were burned in effigy and the Georgia National Guard was deployed to protect the Governor and disperse the angry mob. For his protection, Mr. Frank was transferred to the Milledgeville State Penitentiary a minimum security work farm.

In response to the news that Leo Frank’s sentence had been commuted to life in prison, a group of prominent men, including the former governor of Georgia and the mayor of Marietta (the home town of Mary Phagan), organized themselves into the "Knights of Mary Phagan” and plotted to kidnap Mr. Frank from prison to exact their own form of "justice.” On August 16, 1915 a group of cars arrived at the Milledgeville prison at around 10:00pm. It took these armed, unmasked men only ten minutes to seize Leo Frank from prison, take him to an oak grove facing the house that Mary Phagan had lived in and to where a rope and table awaited him. Seeing their intentions, Mr. Frank removed his wedding band asking the lynch mob to deliver it to his wife Lucille which it was. Former County Sheriff William Frey slipped the noose around Leo Frank’s neck, put him on the awaiting table and he was hung that morning. On November 25, 1915, months after Frank was taken from the Milledgeville prison, members of the Knights of Mary Phagan burned a gigantic cross on top of Stone Mountain, reportedly inaugurating a revival of the Ku Klux Klan. In response to the strong and violent anti-Semitism that arose during and after the Leo Frank case, the defense fund that had been established for Mr. Frank, later become known as the current Anti-Defamation League.

In his remarks, Professor Joe Tulman gave some background on the Jewish
population, who were mostly of German origin, at the time of Leo Frank. He
talked about how the Jewish community, especially in Atlanta, worked to
assimilate and become respected members of the community but that this was
threatened by the influx of other Jewish immigrants who refused to change their
language or culture. Because of this, the Jewish community came to be seen more
as "outsiders” or "strangers” and less like neighbors. It was in this
atmosphere of distrust that Leo Frank faced a jury of his peers, Professor
Tulman said. He went on to say that over time, the story of Leo Frank served as
a boogeyman or cautionary tale to young Jewish children that if they misbehaved
something terrible would happen to them as well.

Professor John Terzano drew parallels between the circumstantial cases
of Mr. Frank and Troy Davis in that they both dealt with issues of habeas
corpus. In Mr. Davis’ case, a black man accused of murdering a white police
officer in the state of Georgia, nine witnesses testified that Mr. Davis had
either confessed to killing Mark MacPhail or that they had seen him do it.
Later, seven of those nine witnesses would come to recant their testimony after
Mr. Davis had been sentenced for execution.In 2009, the U.S. Supreme Court ordered the U.S. District Court of
Georgia to consider whether new evidence that could not have been obtained at
the time of the trial could establish the innocence of Mr. Davis. During the evidentiary
hearing, the defense presented the affidavits from those seven witnesses who
had later recanted. What was disturbing, Professor Terzano said, was that
though those witnesses were at the courthouse at the time of the hearing, they
were never called to testify and therefore their affidavits were given little
weight by the judge. It was never explained why the witnesses were never called
to testify. Evidence that another man, Sylvester Coles, had confessed to the
murder of Officer MacPhail was excluded as hearsay because Coles was not
subpoenaed by the defense to rebut it. Ultimately any and all appeals for a
stay and clemency were denied and Troy Davis was executed through lethal
injection on September 21, 2011. Professor Terzano closed by saying that the
U.S. Supreme Court has yet to rule on whether or not it violates the
Constitution to execute an innocent person.

UDC Research Associate Gerri L. Williams ended the event with a
presentation on how the Leo Frank case was sensationalized and captured the
imagination of not only the people of Georgia but the nation. With papers such
as the Georgian inundating the public
with scintillating and scandalous exposés, the paper was able to manipulate
public sentiment either for or against the case depending on the political
leanings of its owners, the desire to increase readership and to sell newspapers.
Ms. Williams drew parallels to today’s use of social media like Facebook and
cell phone texting and its effects on social activism and organizing. With the
introduction of these tools, information is able to reach more people, faster.
For example, individuals are able to organize as a group in real time behind a
common cause such as the stay of execution of Troy Davis. With increasing
public involvement and education the death penalty might soon be abolished.